from the playing-games-with-the-law dept

A few months back, we wrote about a company called ivi, which was trying to use some legal loopholes to stream broadcast TV online. It was basically trying to use a part of the law (Section 111 for those playing along with the home game) that was designed to make it easier for cable stations to rebroadcast network TV. However, the court is not buying it and has issued a preliminary injunction ordering the site to shut down its service. The court points out that ivi isn't just playing a single loophole game, but it's really trying to thread the needle through two separate loopholes. For the strategy to work, not only does Section 111 have to apply to the internet provider, but at the same time, it has to exempt itself from the Communications Act. The court suggests this tapdance is too much to take:

In other words,
defendants argue that ivi is a cable system for purposes of the
Copyright Act, and thus may take advantage of the compulsory
license, but that it is not a cable system for purposes of the
Communications Act, and thus it need not comply with the
requirements of that Act and the rules of the FCC promulgated
thereunder.

The thing is, the more I read the details, the more I actually think that ivi's legal argument makes sense, even if the court disagrees. The problem here is the way the laws are written. A strict reading of Section 111 certainly suggests that ivi probably qualifies and can rebroadcast network TV with a nominal payment to the Copyright Office. At the same time, it's true that the Communications Act almost certainly doesn't apply to ivi, because it doesn't cover the internet. In other words, ivi's careful loophole threading seems to make sense. The more reasonable response from the court wouldn't have been to shut it down, but to allow it to go forward -- and for Congress to determine if that loophole should or should not exist (meaning the TV industry lobbyists step in and Congress shuts the loophole).

All that said, this whole fight seems pretty silly. I still don't understand why the TV networks are that upset by ivi, and I still don't see how ivi has a business model that's particularly compelling or sustainable. The networks might have been better served by just letting ivi flop on its own. I can't see too many people willing to pay up just to get broadcast TV...

Reader Comments

It would have been a way around licensing restrictions, I suppose, as users in e.g. Europe could watch US TV without paying money to the European license-holders of the content. This means there was probably a push from foreign broadcasters to shut it down, combined of course with pressure from the IP holders, who always love more restrictions just in case.

The broadcasters themselves probably wanted to get rid of this as well, because the extra viewers watching through this service would not show up on their ratings. In their book that probably counts as a "lost sale", because their air-time has less value for advertisers than if those users were being counted.

tl;dr, a bunch of stupid business models could have been disrupted in case this sort of thing caught on, so the big boys are making sure we stay in the 20th century.

Re:

The broadcasters themselves probably wanted to get rid of this as well, because the extra viewers watching through this service would not show up on their ratings. In their book that probably counts as a "lost sale", because their air-time has less value for advertisers than if those users were being counted.

Re:

The broadcasters themselves probably wanted to get rid of this as well, because the extra viewers watching through this service would not show up on their ratings. In their book that probably counts as a "lost sale", because their air-time has less value for advertisers than if those users were being counted.

I understand it

All that said, this whole fight seems pretty silly. I still don't understand why the TV networks are that upset by ivi, and I still don't see how ivi has a business model that's particularly compelling or sustainable. The networks might have been better served by just letting ivi flop on its own. I can't see too many people willing to pay up just to get broadcast TV...

Re: Re: Re: I understand it

Anything transmitted over (monopolized) broadcasting spectra should be required to be released under a permissive license that allows free copying, storing, and redistribution. The government/corporate complex has no business getting a free monopoly on public spectra, spectra that rightfully belongs to the public, spectra that I have as much a right to broadcast to as they do. If they are going to deny me of my right to transmit signals on that spectra then they at the very least have no business denying me of my right to record, store, copy, and redistribute the information transmitted on that spectra to others. If you don't like it, keep your broadcasting signals off public property and keep them off of other people's private property.

If there were no broadcasters, I can freely record, copy, store, and redistribute whatever background noise I get on whatever frequency. It's my right. Just because some out of control tyrant government decides that they can tell me that I can't broadcast whatever I want on that spectra and that only big corporations could doesn't mean that they can also control my ability to record, copy, store, and redistribute whatever comes out of such public spectra to others. That spectra rightfully belongs to the public, not the overly controlling big corporations.

Re: Re: I understand it

You've obviously not looked, as usual. There's a story about Crytek's response to the leak of their new game. ivi is worth supporting, as they made sure that they were legal in what they were doing, and someone didn't like it.

The broadcasts are already free. What ivi is doing is:

1) making a stream of these shows for a nominal fee;
2) making sure it's not trying to deliberately step on anyone's toes;
3) trying to stay within the confines of law.

The reason why the comcos are pissed is that they're obsessed with Windows 7 and pissing off customer by not offering a service.

Re:

It may have something to do with our law system and how it's emotionally based.

IIRC, a judge can know a law is wrong, but they can't change it. Think of how slashing the Tenenbaum "reward" for the RIAA (aka MAFIAA) was met with an immediate appeal even though it was rather excessive to try to make Tenenbaum pay so much.

Supposedly, it's a balance for law. As it stands, it may be a great impedence on justice. If it's not in the lawbooks, a judge can't really help you.

Having it both ways?

From the Communications Act:
(b)(1) Following the date that is one year after the date of enactment of the Cable Television Consumer Protection and Competition Act of 1992, no cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except--
(A) with the express authority of the originating station; or
(B) pursuant to section 614, in the case of a station electing, in accordance with this subsection, to assert the right to carriage under such section.
...
(13) the term ''multichannel video programming distributor'' means a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming

So how again does ivi avoid the requirements of the Communications Act? It's not a Title I information service, it's a Title III multichannel video programming distributor, no?

Re:

let me see if i understnad this US law

NBC shows V.2009 lets say on monday

I stream (broad cast) it over cable and thus i would be able to do this ?

NOW can i add commercials before and after and during ( which is modifying the show )
Would the networks be more ok if you put a spot light of say in front saying originally aired on NBC at such n such a time?
COuld i then also have NON americans buy such a service that might not get NBC's tv offerings.

YA see if network tv were smart they'd jump at this and instead a suing like music and movies did and are imploding ( look at the real quality of films and music )
they will not only get less pirating , htey just might if this is done in fair pricing MORE revenue rather then less.

Re: Not the same is not the same.

You are assuming that the broadcaster is operating under an honest framework. It is not. The framework that the broadcaster is operating under is one where they, and the govt complex, get to steal my right to broadcast on that spectra in return for absolutely nothing.

If there was nothing broadcasted on that spectra I have a right to take whatever background noise comes out of that spectra, modify it how I please, and redistribute my modifications. Just because some out of control tyrant government wrongfully takes my right to broadcast whatever I please on that spectra is no excuse for them to also wrongfully modify what I record on that spectra however I please and to redistribute the modification. Again, if you don't like it, keep your signals off of public property and keep them off of other people's private property.

(So long as I don't intentionally tell others that the network broadcasted X when they didn't because that would be a lie and telling lies is wrong and even fraudulent if it's for the purpose of making money).

ivi serves a growing niche

I stopped subscribing to cable ages ago and I don't own a tv. I use netflix and watch whatever I can online.

However, when it comes to certain live events like the olympics, the world cup, the super bowl. I want nothing more than to see these events live. I am willing to pay to see them for the duration of the event. But I am not willing to pay a huge fee for a cable subscription.

ivi offered a way to spend a few dollars and get access to the content I want to see. Something the cable & broadcast networks are not willing to let me do. And because the dept of homeland security is cracking down on other options.. I am left with no alternatives.

I wanted to subscribe to ivi during the superbowl but they were inundated with requests and had to limit subscriptions. This shows that there is a real demand for their service and it probably is a threat to the networks.

Not only is it cheap. (I think $6 a month) But they even support Linux and Mac. I hope ivi is around during the next live event I want to see because I am totally willing to pay the reasonable price to watch tv the way I want to.